2017 PLP 218 (YLRN)

SADAQAT HUSSAIN RAJA, J.

The captioned appeal has been filed against the judgment and decree dated 14.10.2016 passed by the learned Senior Civil Judge/Judge Family Court, Rawalakot, whereby, the suits filed for recovery of dower and maintenance allowance on behalf of respondent, herein, have been decreed. Precise facts of the case are that Iqra Kiran, respondent, herein, filed two separate suits; one for recovery of dower and second for maintenance allowance against Walayat Hussain, appellant, herein, on 09.01.2015. It was stated that her nikkah with defendant No. 1 was solemnized on 25.10.2014 and the dower was fixed as Rs. 5,00,000/-, which was deferred dower and the whole dower is payable on the part of defendant. It was further stated that at the time of nikah it was settled that defendant No. 1 will give gold ornaments and clothes etc. within a period of four months and thereafter, Rukhsati shall take place. It was further contended that thereafter defendant several times came there and she performed her matrimonial obligations. It was also stated that in September 2014 defendant last time came there and asked her to go with him but the plaintiff refused to go with him until he does not honour his commitment made at the time of Nikah. It was contended that thereafter the defendant suddenly sent divorce deed through registry. It was also stated that defendant never paid her maintenance, hence, the plaintiff is entitled to decree for dower amounting to Rs.5,00,000/- as well as maintenance allowance @ Rs.5,000/- per month and iddat period. The defendant contested the suits by filing written statements wherein he refuted the claim of the plaintiff and submitted that Nikah was solemnized on gun point and amount of dower was fixed without consent of the defendant and he made report at Police Station Rawalakot in this regard. He further submitted that he never came to the house of plaintiff and did not establish matrimonial relations, hence, the plaintiff is not entitled to dower as well as maintenance. The learned Judge Family Court consolidated both the suits and framed issues in light of the pleadings of the parties and provided them an opportunity to lead evidence. At the conclusion of the proceedings, the learned Judge Family Court decreed the suits through the impugned judgment and decree dated 14.10.2016, hence, the captioned appeal. The learned counsel for the parties have filed written arguments which are made part of the file wherein they have reiterated the grounds taken in their respective pleadings. I have heard the learned Advocates for the parties and gone through the record of the case. So far as the suit for recovery of dower amounting to Rs.5,00,000/- is concerned, the plaintiff in support of her claim produced Mazhar Hussain, Shoaib Tabassum, Muhammad Ashiq, Nasir Arif as witnesses and also got recorded her statement. The witnesses as well as the plaintiff herself in their statements deposed that nikkah of the spouses was solemnized on 25.10.2014 and the dower amount was fixed as Rs. 5,00,000/- which was deferred dower whereas the version of the defendant/appellant is that the nikkah was solemnized on gunpoint and his signature on nikkahnama was also obtained forcibly, hence, the plaintiff is not entitled to dower. The defendant in support of his version produced Muhammad Sagheer Hussain, Azmat Hussain, Jahangir Hussain and also got recorded his own statement. The defendant also stated that he reported the matter at Police Station Rawalakot but there is no proof on the file on the basis of which it could be said that the nikkah was solemnized at gunpoint. However, from the perusal of the evidence it becomes crystal clear that the nikkah was not solemnized in pleasant atmosphere either on the point of determination of dower or on the issue of gold ornaments. However nikkah of the spouses is proved and the dower amounting to Rs. 5,00,000/- is also proved. In the case in hand, another ground has been taken by the defendant that as the nikkah was solemnized on gunpoint and the Rukshati was not taken place hence, the marriage was not consummated. Though the witnesses produced by the plaintiff stated in their statements that defendant several times came to the house of plaintiff and the plaintiff in her statement also stated that the same fact and also deposed that she remained performing matrimonial obligation but mere on the oral statements, in the circumstances of this case when the rukhsati was not taken place, it cannot be said that the marriage was consummated because it is proved from the evidence produced by the parties that nikkah was not solemnized in a pleasant atmosphere and it is admitted position that Rukhati was not performed. Law is well settled that wife is entitled to the dower fixed at the time of Nikkah, however, in accordance with the sharia if the marriage is not consummated, the wife is entitled for only half of the dower, as has been held in PLD 1988 Kar. 625 wherein at page 626 it was observed as under:-- "However, if the husband divorces the wife before consummation of marriage then he will be liable to pay only half of the dower amount." This question has also been attended in 2015 YLR 2533 and in para 9 of the report it was observed as under:- "

9. Now the point of consummation of marriage is taken into consideration. The record reveals that respondent No. 1 accepted her wife, who lived with him for about 8 to 10 days and during this period he consummated marriage, and it is settled principle of Islamic law that a husband is bound to pay full dower to his wife in case of consummation of marriage and if he did not consummate the marriage, then half of the dower is right of bride." As stated above, the consummation of marriage is not proved in the case in hand, therefore, in view of the settled proposition of law the plaintiff is entitled only half of the dower amount which comes to Rs. 2,50,000/-. So far as the suit for maintenance allowance as well as the allowance of Iddat period is concerned, admittedly the nikkah was solemnized and the plaintiff remained wife of the defendant for two months and being husband he was duty bound to pay her maintenance. If for the sake of argument, the stand of the defendant that the nikkah was solemnized on gunpoint is accepted even then he may divorce her forthwith after departure from the house of plaintiff, therefore, the plaintiff is entitled to the maintenance allowance for the period she remained wife of the defendant and for Iddat Period. In view of above, the appeal is accepted partly and the plaintiff/respondent is declared entitled only half of the dower amount, which comes to Rs. 2,50,000/- (Two Lac Fifty thousands) and the same stands dismissed to the extent of maintenance allowance as well as allowance of iddat period. MQ/21/Sh.C(AJ&K) Appeal accepted.